Liability (law and morality)
It is legally binding if, from the point of view of the recipient or the other contracting party, a legally binding effect is desired in the case of declarations of intent or legal transactions .
General
The legally binding effect contributes to legal certainty . A legal system is only binding if it can be understood as a free agreement between the legal entities subject to it . A legally binding legal act requires a legal entity to behave in a binding manner and is linked to non-compliance with sanctions . As a legally binding agreement, the contract is undoubtedly characterized by a high degree of legal certainty, as its fulfillment can be enforced with the help of the courts or the bailiff .
In legal opinions , it is also checked internationally, among other things, whether contracts ( English agreements ) are legally binding ( English legally binding ), i.e. whether the contracting parties are binding.
Legal issues
The legally binding force of laws (the law application order) comes into effect on the day they come into force . Whether they also have legal effect ( legality or illegality ) is not answered here, but is subject to the error calculation . Despite their illegality, laws, ordinances and notices apply until they are repealed by a court or competent authority .
According to Section 145 of the German Civil Code (BGB) , the person who asks another person to conclude a contract is bound by the application if he has not excluded the obligation . It means that the declaring party can no longer unilaterally renounce his offer. It is only up to the recipient to bring about a legally effective contract by accepting it. This binding effect can be excluded or limited by declarations . These include "Offer subject to change according to our availability" (valid offer with revocation of title ), "Offer while stocks last" (offer under the condition subsequent that the goods at the time of acceptance of the offer is available) or at a price clause linked offer.
Legally binding in the sense of a “legally binding signature” are signatures on contracts or documents only if the signing natural person is authorized to represent the legal person making the declaration . This can be confirmed by a notarial certification ( § 40 BeurkG , § 41 BeurkG) or notarization ( § 40 BeurkG). If the concluded contract is legally binding, it becomes binding. The binding effect obliges the contracting parties to allow the obligations entered into by the contract to apply to them and to also fulfill them within the meaning of the contract. Furthermore, the legally binding effect plays a role in the validity of an assurance in terms of legal force (see also warranty , binding information ).
In contrast are non-binding declarations of intent such as the Letter of Intent or the Memorandum of Understanding . At most, they develop a moral obligation to actually comply with the intention laid down in writing . This does not result in a legal obligation, and the obligation is not enforceable. The preliminary contract, on the other hand, is undoubtedly a legally binding declaration which, in the event of a breach of duty by the contracting parties , is obliged to pay damages according to § 331 BGB, § 280 BGB and represents a stronger form of legal binding. Even in the case of a legally binding declaration of commitment, however, "it cannot be disregarded that the wording used, 'intends' to weaken and restrict the binding force and legal obligation entered into . ”In the judgment cited, the BGH made it clear that a promise only applies to the normal case, but that this may be waived for good cause .
Not legally binding are vain , for the time being are not legally binding pending invalid contracts.
Legal and moral obligation
In 1690, Samuel Stryk divided the obligations stemming from Roman law ( Latin obligationes ) into natural obligations ( Latin obligationes naturales ) and enforceable obligations ( Latin obligatio civilis ). The former included legal obligations ( Latin obligationes plenae ) and moral obligations ( Latin obligationes minus plenae ). Immanuel Kant's topic was the moral obligation of state laws and the moral limits of state legislation. Kant took the view that the material-legal limit of the inner moral (such as passive resistance ) could not cancel the formal external legal obligation ( breach of the peace ).
Others
More in the moral than in the legal area, the binding character also describes the factual validity of moral rules ( customs , taboos , word of honor ). See also liability (social behavior) .
Individual evidence
- ↑ Franz von Kutschera, Fundamentals of Ethics , 1999, p. 256
- ↑ Ines Härtel, European Legislation Manual , 2006, p. 150
- ↑ Volker Schlette, The administration as a contractual partner , 2000, p. 352
- ↑ Josef Franz Lindne : Bavarian law: the textbook , 2011, p 123
- ↑ Winfried Boecken, BGB - General Part , 2007, p. 182
- ↑ BGH NJW 1984, 1885
- ↑ BGHZ 1, 353 , 354
- ↑ Christine Schielke, The range of the binding effect of commitments in incorporation contracts of the regional reform in Baden-Württemberg , 2012, p. 18 FN 18
- ↑ Christoph Schmitt / Detlef Ulmer, Business Contracts Shaping Legal Security , 2010, p. 17
- ↑ BGHZ 88, 373 , 385
- ^ Samuel Stryk, Specimen Usus moderni pandectarum , 1690, ad. Dig. 44, 7, 5
- ↑ Franz von Kutschera, Fundamentals of Ethics , 1999, p. 295
- ↑ Immanuel Kant, Reflections on Anthropology , Academy Edition XIX, 1882, pp. 524, 7814
